PERFORM Act to restrict recording, broadcasting rights

A Senate bill with full RIAA backing is looking to require tight end-to-end DRM for digital media transmission like satellite radio and webcasts. When support crosses party lines, you just know there's serious money involved.

This is really getting silly. Its obvious that they have lost total control of their product lately they have been flailing about quit disturbingly. They need to figure out how to go with the flow and pick up on advantages as they appear.

Some light reading for you: it turns out that the link to Senate records didn't work out so good...

S. 2644

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Platform Equality and Remedies for Rights Holders in Music Act of 2006'' or the ``Perform Act of 2006''.

SEC. 2. RATE SETTING STANDARDS.

(a) Section 112 Licenses.--Section 112(e)(4) of title 17, United States Code, is amended in the third sentence by striking ``fees that would have been negotiated in the marketplace between a willing buyer and a willing seller'' and inserting ``the fair market value of the rights licensed under this subsection''.

(b) Section 114 Licenses.--Section 114(f) of title 17, United States Code, is amended--

(A) in subparagraph (A), by striking all after ``Proceedings'' and inserting ``under chapter 8 shall determine reasonable rates and terms of royalty payments for transmissions during 5-year periods beginning on January 1 of the second year following the year in which the proceedings are to be commenced, except where a different transitional period is provided under section 6(b)(3) of the Copyright Royalty and Distribution Reform Act of 2004, or such other period as the parties may agree.'';

(B) in subparagraph (B)--

(i) in the first sentence, by striking ``affected by this paragraph'' and inserting ``under this section'';

(ii) in the second sentence, by striking ``eligible nonsubscription transmission''; and

(iii) in the third sentence--

(I) by striking ``eligible nonsubscription services and new subscription''; and

(II) by striking ``rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller'' and inserting ``the fair market value of the rights licensed under this section'';

(iv) in the fourth sentence, by striking ``base its'' and inserting ``base their'';

(v) in clause (i), by striking ``and'' after the semicolon;

(vi) in clause (ii), by striking the period and inserting ``; and'';

(vii) by inserting after clause (ii) the following:

``(iii) the degree to which reasonable recording affects the potential market for sound recordings, and the additional fees that are required to be paid by services for compensation.''; and

(viii) in the matter following clause (ii), by striking ``described in subparagraph (A)''; and

(C) by striking subparagraph (C) and inserting the following:

``(C) The procedures under subparagraphs (A) and (B) shall also be initiated pursuant to a petition filed by any copyright owners of sound recordings or any transmitting entity indicating that a new type of service on which sound recordings are performed is or is about to become operational, for the purpose of determining reasonable terms and rates of royalty payments with respect to such new type of service for the period beginning with the inception of such new type of service and ending on the date on which the royalty rates and terms for preexisting subscription digital audio transmission services, eligible nonsubscription services, or new subscription services, as the case may be, most recently determined under subparagraph (A) or (B) and chapter 8 expire, or such other period as the parties may agree.''.

(c) Content Protection.--Section 114(d)(2) of title 17, United States Code, is amended--

(1) in subparagraph (A)--

[Page: S3511] GPO's PDF

(A) in clause (ii), by striking ``and'' after the semicolon;

(B) in clause (iii), by adding ``and'' after the semicolon; and

(C) by adding after clause (iii) the following:

``(iv) the transmitting entity takes no affirmative steps to authorize, enable, cause or induce the making of a copy or phonorecord by or for the transmission recipient and uses technology that is reasonably available, technologically feasible, and economically reasonable to prevent the making of copies or phonorecords embodying the transmission in whole or in part, except for reasonable recording as defined in this subsection;'';

(2) in subparagraph (C)--

(A) by striking clause (vi); and

(B) by redesignating clauses (vii) through (ix) as clauses (vi) through (viii), respectively; and

(3) by adding at the end the following:

``For purposes of subparagraph (A)(iv), the mere offering of a transmission and accompanying metadata does not in itself authorize, enable, cause, or induce the making of a phonorecord. Nothing shall preclude or prevent a performing rights society or a mechanical rights organization, or any entity owned in whole or in part by, or acting on behalf of, such organizations or entities, from monitoring public performances or other uses of copyrighted works contained in such transmissions. Any such organization or entity shall be granted a license on either a gratuitous basis or for a de minimus fee to cover only the reasonable costs to the licensor of providing the license, and on reasonable, nondiscriminatory terms, to access and retransmit as necessary any content contained in such transmissions protected by content protection or similar technologies, if such licenses are for purposes of carrying out the activities of such organizations or entities in monitoring the public performance or other uses of copyrighted works, and such organizations or entities employ reasonable methods to protect any such content accessed from further distribution.''.

(d) Definition.--Section 114(j) of title 17, United States Code, is amended--

(1) by redesignating paragraphs (10) through (15) as paragraphs (11) through (16), respectively; and

(2) by inserting after paragraph (9) the following:

``(10)(A) A `reasonable recording' means the making of a phonorecord embodying all or part of a performance licensed under this section for private, noncommercial use where technological measures used by the transmitting entity, and which are incorporated into a recording device--

``(i) permit automated recording or playback based on specific programs, time periods, or channels as selected by or for the user;

``(ii) do not permit automated recording or playback based on specific sound recordings, albums, or artists;

``(iii) do not permit the separation of component segments of the copyrighted material contained in the transmission program which results in the playback of a manipulated sequence; and

``(iv) do not permit the redistribution, retransmission or other exporting of a phonorecord embodying all or part of a performance licensed under this section from the device by digital outputs or removable media, unless the destination device is part of a secure in-home network that also complies with each of the requirements prescribed in this paragraph.

``(B) Nothing in this paragraph shall prevent a consumer from engaging in non-automated manual recording and playback in a manner that is not an infringement of copyright.''.

(e) Technical and Conforming Amendments.--

(1) SECTION 114.--Section 114(f) of title 17, United States Code (as amended by subsection (b) of this section), is further amended--

(A) in paragraph (1)(B), in the first sentence, by striking ``paragraph (3)'' and inserting ``paragraph (2)''; and

The RIAA are a bunch of fascists. They are telling us when and where we can have our media. This bill reeks of lobbyists for the record business and it's misguided. They should stop thinking of ways to make people criminals and focus on giving us what we want.

With all of the the money that the RIAA has spent, they could have been humanitarian and created a 20 petabyte server and started a distribution center themselves. It is just the man trying to keep us all down.

As always, the best recourse we have is to simply stop buying their garbage. This will cause the media moguls to get even more desparate until finally they either give in or fold. Personally I'd love it if they folded. I imagine what would come out of the ashes would be better than the current trash.

This and all other bills of its type are going to pass. The money and presure is overwhelming from the big corps.The only ay things will get sorted out is down the road when all this new tech really gets out there into the non-geek world like TVs are.Then, when Bubba and all his freinds discover just how crippled all the new stuff is we might have a groundswell against it.But I am pesimistic in that regard.

I listened to the hearing on this today (love CSPAN... you can probably hear it in the archives).

They had the CEO of Warner Music, XM radio, NAB (North American Broadcasters), and Live365. Warner, of course, said the the bill is great because it would make digital distributors pay "market rates," and he made it sound like they get away with highway robbery as the laws stand now.

In short, the data they presented really made the Warner CEO seem like a greedy crybaby. If PERFORM still passes after that, it's the perfect demonstration of how politicians are bought by lobby dollars.

I recommend you listen to this hearing if you're interested in the subject.

As one of Senator Feinstein's constituents, I'm at a bit of a loss as to how to handle this. I've written to her before regarding something along these lines, and received a form letter back with the blah de blah about balancing consumer rights with copyright holders' rights. Anyone have any ideas on how to get closer with this?

There's only supply if there is demand. So, who is actually paying for supposedly free content? I'm not. I bet 90% of the people opposed to the PERFORM Act and other legislation kick out duckets to the companies they so vehemently lambast here and on other forums.

Go ahead, fess up. Who pays for content that they used to get for free, and now gripe about it?

Originally posted by kcarlile:As one of Senator Feinstein's constituents, I'm at a bit of a loss as to how to handle this. I've written to her before regarding something along these lines, and received a form letter back with the blah de blah about balancing consumer rights with copyright holders' rights. Anyone have any ideas on how to get closer with this?

Yeah, Fienstein used to be quite the pro-consumer firebrand if I remember right.She sure has sold out.

Originally posted by Humbled:In short, the data they presented really made the Warner CEO seem like a greedy crybaby. If PERFORM still passes after that, it's the perfect demonstration of how politicians are bought by lobby dollars.

I think people don't fully understand why the record companies want this law; it's not as unreasonable as you might think.

Under copyright law, the copyright owner (here the record labels) is entitled to a bundle of exclusive rights. This includes, among others, the rights of reproduction and public performance.

The digital transmission of a song, either through a music store like iTunes or Internet radio, entails both reproduction and public performance for sure. An Internet radio stream, like any radio broadcast, is a public performance. Because of the way computers work, a streamed mp3 also has to be copied into the computer's memory, which makes it a reproduction. With stream ripping software, you can save the publicly performed song file to your hard drive for use as any other mp3. You can burn it to CD or load it onto your iPod. It is in effect the same thing as an mp3 legally purchased through an mp3 service like eMusic or Bleep.

The problem is that whereas Apple and eMusic have to pay a fully negotiated license fee to the copyright owners to provide the users of its serivce with song files the users get to keep permanently, the Internet and satellite broadcasters can obtain the right to broadcast the music for a fixed fee under the compulsory license provisions of the Copyright Act. This means that XM can allow you to acquire a song file that is functionally equivalent to a song you download from eMusic without paying the copyright holders what Apple and eMusic have to pay. To the extent XM is doing this, I can appreciate why the record labels are unhappy.

If you have a problem with DRM, direct your criticisms at the DMCA. The purpose of this amendment is not unreasonable, although some of the specifics might be (it's hard to follow exactly what the bill does).

The fact that we have compulsory licenses at all is quite generous of Congress; as a practical matter, a broadcaster providing permanent downloads shouldn't be able to avoid paying what other resellers have to pay to provide the same service'”permanent digital music downloads'”just by calling its service a broadcast.

Oh ghods.. Was I just humming an old pop-song? I think I hear the black helecopters coming now to serve me a warrant for an un-licensed performance of copyrighted music..

The really sad thing, is that I cannot even think about the 'recording industry' or the RIAA in specific, without phrases like "clueless moneygrubbing lawyer weilding facists" coming immediately to mind..

What's really amazing about that bill is how many sections of current law it's just plain obliterating.. It's not replacing them, it's just outright DELETING them..

and there's a really really easy way to tell if something is being deleted or not.. If the section grants rights to the 'consumer' of the content, it's likely to have been nuked. If it granted rights to the 'producer' or 'owner' of the work, then it's likely to be retained, or augmented.

and I ESPECIALLY like the whole concept of 'fair market value'.. Which is just an end-run around the pricefixing stuff.. No more does anyone get to negociate for a good deal.. hope.. now you ALL pay the same price.. and the companies can't be accused of 'fixing' the prices if they can claim "that's the fair market value, everyone AGREES on that.. (everyone of US selling the stuff tht is)

Now what I don't get is, in a normal market, fair market value can be defined as some sort of stastical mean/average price, based on what's stuff is being bought-sold for.. and the buy-sell prices are basically market driven, supply and demand etc. Charge too much and consumers don't buy, etc.

But if EVERYONE is prohibited from 'negociating' a deal, and forced to pay the 'fair market value' there is no longer a MARKET.. so how in hell do you determine a fair market value??

Originally posted by kcarlile:As one of Senator Feinstein's constituents, I'm at a bit of a loss as to how to handle this. I've written to her before regarding something along these lines, and received a form letter back with the blah de blah about balancing consumer rights with copyright holders' rights. Anyone have any ideas on how to get closer with this?

Balancing? what balancing.. more like GUTTING.. did that bill add a single consumer right? far as I can tell all it did was delete them

To the extent XM is doing this, I can appreciate why the record labels are unhappy.

You should really watch the video of the hearing. They get into the legality of what is happening, and you propose that "digital distribution" is the largest issue yet personal recording is actually protected under a different law, the home recording act. In addition, like I mentioned, XM *pays money* for the rights for their listeners to record. Everything is paid for. The labels just want a higher percentage from digital mechanisms because they are popular, even though they already pay more than twice what analog radio pays, which does not include the fact that analog radio does not pay for consumers recording its audio. Yet it is well known that it happens. XM's copy controls are not significantly different than if you taped off the analog radio - you still have to wait for your show to come on and then begin recording. It's not a get-what-you-want-when-you-want system (like iTunes), as the labels are claiming.

Originally posted by kcarlile:As one of Senator Feinstein's constituents, I'm at a bit of a loss as to how to handle this. I've written to her before regarding something along these lines, and received a form letter back with the blah de blah about balancing consumer rights with copyright holders' rights. Anyone have any ideas on how to get closer with this?

Yeah, Fienstein used to be quite the pro-consumer firebrand if I remember right.She sure has sold out.

I've written her several times regarding issues of copyright law and consumer rights, and I've gotten the same form letter back that you have each time. This has gone on for several years.

One of Senator Feinstein's top contributors is the entertainment industry. Not surprising since it exists almost entirely within the state, but as such she is completely beholden to them. I've felt she's drifted far away from representing Californians as a Senator and seems to be a mouthpiece for the insignificant pet issues of an impotent Democratic party (I'm a Democrat, btw) and the entertainment industry. Strangely, she seems to relatively ignore the much larger and more influential technology industry (also residing in the state), which typically opposes these types of moves by the entertainment biz.

My hope is that a new Democratic challenger runs for her seat in the Senate. I'd love to see a battle like that, similar to Angelides vs Westley for Governor. Needless to say, I'm going to vote against Feinstein at the next opportunity. I hope the Dems sack up and put a real Democrat in her seat. Feinstein is a shell housing everything wrong with both parties. Bye bye, DiFi.

The fact that we have compulsory licensescopyright at all is quite generous of Congress

T,FTFY

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as a practical matter, a broadcaster providing permanent downloads shouldn't be able to avoid paying what other resellers have to pay to provide the same service'”permanent digital music downloads'”just by calling its service a broadcast.

Then perhaps the other resellers are paying too much and the law should be changed to reflect that. If we keep heading in this direction the next bill will be the elimination of public libraries because they allow you to access a work without paying for it at all (which is clearly immoral and wrong and we must put a stop to it immediately).

Originally posted by kcarlile:As one of Senator Feinstein's constituents, I'm at a bit of a loss as to how to handle this. I've written to her before regarding something along these lines, and received a form letter back with the blah de blah about balancing consumer rights with copyright holders' rights. Anyone have any ideas on how to get closer with this?

Get 500 of her constituents to sign a letter saying that they will not vote for her unless she withdraws her support for this bill. Tough? Yes, but unless she starts to feel that she'll loose substantial votes because of this, you won't get anywhere. It wouldn't make sense for her to refuse money if it doesn't cost her enough in votes.

And if you have any amount of time or money you may even want to start a public campaign against the law in the swing districts that mentions her specifically and repeatedly as the sponsor. Even something as simple as standing in front of a busy record store with a sandwich board and a bullhorn and handing out fliers. Get all the girls you know to show up and help; random guys will talk to girls because they think they can get laid if they support whatever her cause is, which is a great way to get a lot of signatures on a petition.

One person doing that probably won't significantly affect the election, but if half the people reading this message (this means you!) go out and do something like it then people will notice. The greatest ally of corruption is apathy.

I don't disagree, although I think amending it might be a more realistic objective.

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The fact that we have compulsory licensescopyright at all is quite generous of Congress

T,FTFY

Sort of. Copyright is provided for in the Constitution as a power of Congress "[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The current copyright regime is in many ways generous of Congress, but copyright itself is not. Copyright was a legal innovation the founding fathers, especially Jefferson, believed in. To abolish copyright would be a significant break with our history.

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as a practical matter, a broadcaster providing permanent downloads shouldn't be able to avoid paying what other resellers have to pay to provide the same service'”permanent digital music downloads'”just by calling its service a broadcast.

Then perhaps the other resellers are paying too much and the law should be changed to reflect that.

Firstly, digital broadcasters are not resellers, by definition; that is the problem this bill seeks to address. Moreover, the fact of the matter is that people continue to pay exorbitant prices for music despite the fact that the record industry has been acting as a cartel for decades. As long as we have copyright, as with any property interest, the owner should have the right to set his terms for sale and licensing.

Or do you think a software engineer who writes a shareware program should have no right to charge what the market will bear for it? Only copyright law allows him to do so.

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If we keep heading in this direction the next bill will be the elimination of public libraries because they allow you to access a work without paying for it at all (which is clearly immoral and wrong and we must put a stop to it immediately).

No one it talking about diminishing the rights of libraries and traditional nonprofits to engage in public performances and other potentially infringing activities, as provided for throughout the Copyright Act. What they are talking about is not allowing digital broadcasters to provide permanent downloads under the compulsory license. It is understandable to feel that the record labels are trying to destroy our traditional right to make home recordings of radio broadcasts, but it is equally true that the technology has evolved to the point where such a digital transmission is the functional equivalent of a phonorecord. Radio stations have never had the right to sell physical copies of the music they license for broadcast to their listeners. Why should they suddenly be allowed to do so in the digital era?

The fact is that the old regime has broken down, both for consumers and copyright holders. Either we strike a balance going forward, or people will lose all financial incentive to publish creative works. Maybe you don't believe in this incentive, but I like the fact that in the this country it is possible to make a living as a writer or musician. Yes, the RIAA does act in objectionable ways, but that does not mean that copyright is itself a bad idea.

To the extent XM is doing this, I can appreciate why the record labels are unhappy.

You should really watch the video of the hearing. They get into the legality of what is happening, and you propose that "digital distribution" is the largest issue yet personal recording is actually protected under a different law, the home recording act. In addition, like I mentioned, XM *pays money* for the rights for their listeners to record. Everything is paid for. The labels just want a higher percentage from digital mechanisms because they are popular, even though they already pay more than twice what analog radio pays, which does not include the fact that analog radio does not pay for consumers recording its audio. Yet it is well known that it happens. XM's copy controls are not significantly different than if you taped off the analog radio - you still have to wait for your show to come on and then begin recording. It's not a get-what-you-want-when-you-want system (like iTunes), as the labels are claiming.

Open your eyes.

Believe me, I have thought about this a lot. To be brief, I would say two things to your arguments:

1) XM pays money for the rights to perform publicly the content it broadcasts. However, it still pays less money than Apple does to provide permanent downloads. Why exactly should XM be able to do this?

2) I understand that XM â‰ iTunes, especially in terms of convenience. However, a digital audio file ripped from XM is the functional equivalent of a song off of iTunes (or really eMusic, since it is unencumbered by DRM). The compulsory license was never meant to allow this. Now that technology has made this happen, do you really think this doesn't diminish the established rights of copyright owners? Yes, the RIAA and the major labels frequently act in objectionable ways. But many artists make a lot of money from record sales. This loophole essentially diminishes their right to control who gets to distribute copies of their recordings, so I can appreciate why the labels believe it should be closed.

Of course, I'm not denying that the record labels are profit hungry multinationals leveraging their substantial lobbying clout to serve their interests. I'm just saying that their arguments are not without merit. I'll be sure to check out the hearings when I get a chance.

but it is equally true that the technology has evolved to the point where such a digital transmission is the functional equivalent of a phonorecord

Did you just compare a 96kbs stream to a disk of plastic with bumps on it?

You make a good point in terms of the technology. However, this distinction is not as meaningful when it comes to copyright law. A song ripped from a 96kbs stream is the legal equivalent of the full-bitrate rip from a CD. Perhaps the law should be changed in this regard. It is an interesting point.

Indeed, maybe your point is implicated in the "fair market value" language of the bill, so that a 96kbs rip is worth less than a 128kbs rip, etc.

That said, what matters most under the current law is the nature of the reproduction. With a song ripped from Internet radio, as with an mp3 ripped from a CD, the consumer has the ability to keep the song forever, listen to it on her iPod, etc. In both instances the exclusive legal right of the copyright holder to license reproductions of her work are equally implicated.

Couple little problems with the RIAA's argument. I should know as I have in the past copied music off XM. First, its exactly the same as copying off a radio. It has to be analog to do so. I have to hook a headphone plug into the sound in port of my sound card to record. While the signal may get to me digitally, it is degraded and far less than CD quality. I think its around 92 kb/s bit rate. Maybe lower. The XM radios that do record, only record to internal memory. Its not like you can get a digital copy of it from the device. And like the report said, XM is already paying twice what radio is. THis is all RIAA bullshit at its finest.

Ripping a song from XM is the same as recording from FM. And the court has already stated that it was fair use. Part of that tax on all DAT tapes goes to pay for this freedom. They want to take back that right, you think they are gonna give back that tax?

Originally posted by kcarlile:As one of Senator Feinstein's constituents, I'm at a bit of a loss as to how to handle this. I've written to her before regarding something along these lines, and received a form letter back with the blah de blah about balancing consumer rights with copyright holders' rights. Anyone have any ideas on how to get closer with this?

Yeah, donate $10K. That'd get you in her door. Get your SO to give another 10K and you might get heard. Don't forget to get your kids, friends and other family members to donate also!

but it is equally true that the technology has evolved to the point where such a digital transmission is the functional equivalent of a phonorecord

Did you just compare a 96kbs stream to a disk of plastic with bumps on it?

You make a good point in terms of the technology. However, this distinction is not as meaningful when it comes to copyright law. A song ripped from a 96kbs stream is the legal equivalent of the full-bitrate rip from a CD. Perhaps the law should be changed in this regard. It is an interesting point.

Indeed, maybe your point is implicated in the "fair market value" language of the bill, so that a 96kbs rip is worth less than a 128kbs rip, etc.

That said, what matters most under the current law is the nature of the reproduction. With a song ripped from Internet radio, as with an mp3 ripped from a CD, the consumer has the ability to keep the song forever, listen to it on her iPod, etc. In both instances the exclusive legal right of the copyright holder to license reproductions of her work are equally implicated.

How does this differ than placing an fm radio->audio in jack on your computer and converting it? That is functionally equivalent to an mp3 from eMusic isn't. It may not be the same quality, but neither apparently is the 96kb/s stream from XM. Last I checked, the FM radio broadcasters don't pay anything for this right. Seems like an untapped revenue stream for the good ol' RIAA to me, not to mention most of those companies have big pockets: just think of all those Walkmans made by Sony and those stations owned by Viacom!

Originally posted by TechGeek:Couple little problems with the RIAA's argument. I should know as I have in the past copied music off XM. First, its exactly the same as copying off a radio. It has to be analog to do so. I have to hook a headphone plug into the sound in port of my sound card to record. While the signal may get to me digitally, it is degraded and far less than CD quality. I think its around 92 kb/s bit rate. Maybe lower. The XM radios that do record, only record to internal memory. Its not like you can get a digital copy of it from the device. And like the report said, XM is already paying twice what radio is. THis is all RIAA bullshit at its finest.

Okay, but with Internet radio, VLC can rip an audio stream to disk. Or am I misunderstanding how the technology works? Obviously this is not to say that the Internet radio stations intend to have the songs they broadcast ripped, so the RIAA argument that they be penalized when this happens is a bit weak. However, if the Internet radio stations in fact do not intend for listeners to make permanent recordings of their songs, then they should have no problem with encrypting their audio streams. In that case, you would still be able to make an analog recording of the stream, as provided by in the AHRA.

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Ripping a song from XM is the same as recording from FM. And the court has already stated that it was fair use. Part of that tax on all DAT tapes goes to pay for this freedom. They want to take back that right, you think they are gonna give back that tax?

The AHRA actually requires a form of DRM for digital recordings (i.e., DAT recordings), a serial copy management system (SCMS) that prevents copying second generation digital recordings. So I'm not sure you want to go there.

Otherwise you're stuck with analog, unless you're space-shifting your CD's, which the Ninth Circuit said was fair use in the Rio case. But if you're not space-shifting a licensed reproduction of the copyrighted recording, then arguably this case doesn't apply. Indeed, it's quite possible that any such digital home audio recording must be done with a SCMS-aware device under the AHRA. This is a fairly obscure corner of the law these day, given how unsuccessful DAT proved to be (perhaps b/c of the tax you mention).

Originally posted by Mister E. Meat:How does this differ than placing an fm radio->audio in jack on your computer and converting it? That is functionally equivalent to an mp3 from eMusic isn't. It may not be the same quality, but neither apparently is the 96kb/s stream from XM. Last I checked, the FM radio broadcasters don't pay anything for this right.

From my perspective, the difference is that in the era of iTunes, a digital audio file that can be stored to disk is what people often buy in lieu of a physical phonorecord. So when an Internet broadcaster effectively provides a digital file, this is like providing a permanent sound file to its users.

Perhaps this is, as my copyright professor would say, slicing the bologna pretty thin. But that's the point. Without physical media, what difference remains between an instant audio stream over the Internet and an mp3 on your hard drive? Copyright law can be painfully convoluted, especially when it comes to sound recordings. New technology requires substantial revisions to this mess. While it would be nice to wish away the RIAA and MPAA, onerous lawsuits, and the ridiculous retroactive copyright term extensions, I suspect most of us do believe that artists and authors should have some copyright protections of their work.

From my perspective, the difference is that in the era of iTunes, a digital audio file that can be stored to disk is what people often buy in lieu of a physical phonorecord. So when an Internet broadcaster effectively provides a digital file, this is like providing a permanent sound file to its users.

In what way is this practice significantly different than the practice of copying a song from FM radio to a cassette tape? Both allow you to make permanent copies of a piece of music of significantly lower quality than if you bought it on vinyl/CD. Storage media is magnetic tape or magnetic disk. Multiple copies can be made from the original recording. These copies can even be to a different type of storage media than the original recording.

I'm not trying to be obtuse, but I really don't see the difference.

Twenty-five years ago we were recording from FM to cassette. We'd record vinyl to cassette so we could listen to albums in our cars, on our Walkmans, etc. These are not appreciably different than copying a low bitrate XM song to your hard drive or ripping a CD to MP3. We are already paying taxes on media purchases to cover this kind of use. What has so significantly changed that it requires a new law to circumvent those already in place?

I just GOT it!! THe difference is this: The big media companies own all the radio stations. So taxing them isnt really of any use. But they don't own XM or the internet broadcasters, so they are a prime target to squeeze some money from. The technology hasn't changed. Just someone else (how dare they) was making money off of music besides the RIAA.

I'm really starting to think I should campaign someday and start a new political party. Like I said in another thread, I'll call it the Smart Person's party. This way when people ask if you're a Dem or Rep, you can say neither, you're a Smart Person.

Personally speaking, I'm starting to think that music isn't even really a useful art, and therefore shoudn't be covered under copyright laws to begin with. More importantly we need to revolutionize copyright law and put in a provision that copyright shall not cover personal usage. What that would mean is that the only time copyright could be violated is if its used for commercial puposes. And more importantly you CANNOT patent an idea--bye, bye software patents. The software could be copyrighted, but if some Joe is smart enough to figure out what you've done and compete with you, well, welcome to a free market and socieity. Matter of fact, when I become president I'll have Lawrence Lessig and Bruce Perens sit down and write our new copyright laws. Anyone that attempts to propose ANY legislation, regarless of what it pertains to, that would ever curtail the rights of citizens [in favor of corporations] would immediately be charged as a felon. No more catoring to corporate interests. As a matter of fact, if a corporation is found guilty of a crime, the executives would be personally held responsible for the crimes as if they'd done them themselves. For example, no more slapping RIAA members with fines for price-fixing. The execs themselves would be serving time for defrauding consumers. I could go one, but I'm really getting fired up about this and I need to go to bed soon.

I'm not an XM subscriber so I'm a little shaky on this. But according to the CEO of the company at the Senate hearing, here is why XM != a download service:

1.) You cannot choose what to download through a filter, or searching, or whatever. You can only record based on a station and time, just like analog radio.2.) What you record is locked to your player and to your XM subscription. If you lose either one, you cannot listen to it. This is not like download services such as iTunes, which have rules for transferring music, and it also satisfies your rules about locking the content down.3.) The only way to bypass #2 is through the analog hole. The court has already upheld fair use of recording analog radio.

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Believe me, I have thought about this a lot.

Watch/listen to the hearing and think about it some more. There is a lot of food for thought in there, such as how the RIAA demanding this and the introduction of this bill coincide with the rates XM negotiated with the RIAA expiring and the contract up for renewal. Follow the dollars.

Nobody disagrees with you that protection of IP is a good thing and that copyrights can be beneficial. This is just a case where corporate greed and our corrupt political system are being used to hurt consumers.

Firstly, digital broadcasters are not resellers, by definition; that is the problem this bill seeks to address. Moreover, the fact of the matter is that people continue to pay exorbitant prices for music despite the fact that the record industry has been acting as a cartel for decades. As long as we have copyright, as with any property interest, the owner should have the right to set his terms for sale and licensing.

Copyright isn't a property right. The point of it is to encourage people to create works, not to make sure that Disney never loses control of Mickey Mouse and all the big names in Hollywood make at least seven figures every time they make a movie. Compulsory licensing is as valid a means toward that end as direct sale. If the problem is that people are recording works over the air after the licensing fee has been paid and this doesn't provide creators with a sufficient incentive then the solution isn't to prevent recording, it's to raise the incentive. However, it needs to be balanced. It is no use to have compulsory licensing when the fees are so high that no one will pay them. And since Hollywood makes billions of dollars, it appears the existing incentives are more than sufficient.

I also have to ask, why are they doing this now? A new technology has been created that might impact their business model. They, today as ever, try to have it banned. Why not let it develop for a little while and collect some information on it? See if the effect under existing laws is really so great as to necessitate new legislation. Find out if, like the VCR, the new technology may have benefits to the industry that outweigh the costs. Don't legislate it out of existance before you even find out what it does.

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Or do you think a software engineer who writes a shareware program should have no right to charge what the market will bear for it? Only copyright law allows him to do so.

I don't argue that copyright law in general is a bad thing, merely that the manifestations of it that we see today are excessive and harmful. Software is an interesting example: If an author wrote a book a hundred years ago, the book may still be useful when it falls into the public domain even under our exceptionally misguided copyright law. By comparison, what piece of software do you imagine will still be relevent in fifteen years, much less well over a hundred? Will anyone even be able to read the language it's written in by that point, much less have any hardware capable of natively running it? A programmer should certainly be able to make money by writing programs, but there has to be some balance here, and laws like this do nothing but create more imbalance.

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No one it talking about diminishing the rights of libraries and traditional nonprofits to engage in public performances and other potentially infringing activities, as provided for throughout the Copyright Act. What they are talking about is not allowing digital broadcasters to provide permanent downloads under the compulsory license. It is understandable to feel that the record labels are trying to destroy our traditional right to make home recordings of radio broadcasts, but it is equally true that the technology has evolved to the point where such a digital transmission is the functional equivalent of a phonorecord. Radio stations have never had the right to sell physical copies of the music they license for broadcast to their listeners. Why should they suddenly be allowed to do so in the digital era?

The danger here is that people will use this to get the music they want instead of buying it, and this is exactly why I worry about libraries. Right now you can go to a library somewhere in the country and gain access to just about any copyrighted work in existence, but it's very inefficient. You have to drive to the library, look up the work in the catalog, if they don't have it in stock then you either have to get it on interlibrary loan or drive to the nearest library that has it. Then you have to come back again when you're done to return it. Libraries can -- and should -- be more efficient with new technology. If a library has a digital music collection and no one else is currently listening to a particular song then you should be able to listen to it remotely. They paid for it and no one else is using it. But include some centralization and you've got the potential for a pretty awesome digital library that hardly ever runs out of stock on anything. And at that point, why buy it when you can borrow it?

So no, it wouldn't at all surprise me to find Hollywood attacking libraries in the not too distant future.

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The fact is that the old regime has broken down, both for consumers and copyright holders. Either we strike a balance going forward, or people will lose all financial incentive to publish creative works.

Quite right, but balance is the key. Every piece of copyright-related legislation passed in the last decade has been nothing but bad for consumers and good for industry, and this would be no exception. There needs to be balance, not capitulation.

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Okay, but with Internet radio, VLC can rip an audio stream to disk. Or am I misunderstanding how the technology works? Obviously this is not to say that the Internet radio stations intend to have the songs they broadcast ripped, so the RIAA argument that they be penalized when this happens is a bit weak. However, if the Internet radio stations in fact do not intend for listeners to make permanent recordings of their songs, then they should have no problem with encrypting their audio streams. In that case, you would still be able to make an analog recording of the stream, as provided by in the AHRA.

It isn't just a matter of encryption. You can encrypt the data all you like, but if the user is to listen to it they have to decrypt it. If the user controls the software then he can do whatever he likes with the unencrypted stream. In other words, effective DRM requires that the user can't control the software running on his property, which is a very serious thing to be enshrining in legislation.